Bono and Buttman

If indecency is unconstitutionally vague, why isn't obscenity?

Last week an appeals court in New York overturned the federal ban on broadcast indecency, and a judge in Washington, D.C., dismissed obscenity charges against porn impresario John "Buttman" Stagliano. The two cases show that prohibiting vaguely defined categories of speech undermines the rule of law as well as freedom of expression.

The policy rejected by the U.S. Court of Appeals for the 2nd Circuit defined broadcast indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." Broadcasters who aired such material between 6 a.m. and 10 p.m. were subject to multimillion-dollar fines.

But as the appeals court noted, the guidelines for avoiding those fines were hopelessly muddled. The Federal Communications Commission has declared, for example, that unscripted, fleeting expletives uttered by celebrities during live award shows are indecent, while constant cursing by fictional soldiers in a war movie, if "artistically necessary," is not. The FCC said occasional expletives in a documentary about blues musicians did not deserve the same artistic license because the interview subjects could have expressed themselves differently.

The FCC said bullshitter was "shocking and gratuitous" because it was uttered "during a morning television interview," then changed its mind because the context was "a bona fide news interview." At the same time, it warned "there is no outright news exemption from our indecency rules." The commission said bullshit was unacceptable on a police drama because it was "vulgar, graphic and explicit," but dickhead was OK because it was "not sufficiently vulgar, explicit, or graphic" to be indecent.

The 2nd Circuit cited evidence that the FCC's arbitrary application of its vague, subjective standards has deterred broadcasters from airing constitutionally protected material, including political debates, live news feeds, novel readings, and award-winning shows dealing with sexual topics. "By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means," the court concluded, "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive."

Similar problems are raised by the prosecution of obscenity, defined as "patently offensive" sexual material that "appeals to the prurient interest" (as judged by "the average person, applying contemporary community standards") and lacks "serious literary, artistic, political, or scientific value." Because each element of this definition is inescapably subjective, in practice it is indistinguishable from Justice Potter Stewart's famous standard: "I know it when I see it."

John Stagliano, founder of Evil Angel Video, faced federal obscenity charges that could have sent him to prison for 32 years. But as anti-porn activist Patrick Trueman conceded, the films cited in Stagliano's indictment, Milk Nymphos and Storm Squirters 2, are "in many respects typical of what's available today."

Even if the sex acts depicted in the targeted films were highly unusual, there would be no principled basis for declaring, say, that fluid emerging from women's bodies is obscene while fluid emerging from men's bodies is not. This is not justice; this is a joke.

U.S. District Judge Richard Leon stopped the trial after the prosecutors rested their case, ruling that they had failed to present enough evidence tying Stagliano to the films. But if the prosecutors hadn't been so sloppy, Stagliano's freedom would have hinged on exactly how icky 12 randomly selected strangers thought the movies were. As Stagliano put it in an interview with Reason.tv, "The case law says you just play the movie and see if people are disgusted by it."

Even Americans who don't object to the idea of imprisoning people for movies made by and for consenting adults should worry about the unavoidable arbitrariness of obscenity prosecutions. Like broadcasters operating under the threat of indecency fines, porn producers can never be sure what material will be deemed illegal. That kind of uncertainty should be unacceptable in a society that upholds the rule of law.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

Comments

[Suki]

Good morning reason!

Hi RS ~~~

[Resident Smartass]

The only solution I have to your early time tag is that you're able to modify it. Not sure how.

Anyhow, good morning Suki!

[Suki]

Never exclude time travel or magic.

[Resident Smartass]

I doubt you own a DeLorean and clever tweaking of code is like magic.

So, magic.

...

She's a witch, burn her!

[John Titor]

Server sets the time, so that's not it. Maybe he has a script poll the server for the first new story and then post for him.

Or, when he gets here at 7:30, he sees his earlier post, then sends that information back in time to his (slightly) younger self.

[Suki]

I weigh way more than a duck.

[rctl]

And blowing anything that moves!

[Suki]

Mornings are not the only time I do the posting magic.

Good afternoon RS 😉

[rctl]

Time to blow anything that moves!

[Amakudari]

"language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities."

Geez, talk about being afraid of the human body.

For fun times, read all "Telecom Analyst" posts here:
http://reason.com/blog/2010/06.....tcontainer

Notably, he calls someone a bullshitter between the hours of 6 am - 10 pm.

[Suki]

The way the government reacted to the porn guy you would think he was using raw milk.

(Someone else must have used that one before.)

[zoltan]

Someone already did, Tagliaferro, go back to writing your shitty stories about your female Asian second personality. DID is a treatable problem, dude.

[Resident Smartass]

The commission said bullshit was unacceptable on a police drama because it was "vulgar, graphic and explicit," but dickhead was OK because it was "not sufficiently vulgar, explicit, or graphic" to be indecent.

Funnily enough, I've had a few discussions of this sort for a hobbyist's forum I'm a member of, in that the guy who pays for the site has stated that it should be a "family forum". Incidentally, this involves trying to pick which words are and are not "family friendly"; swearing is the most common "problem" the site has. There are cultural discrepancies, too. One that sticks out in my mind is that "ass" isn't as offensive (if that phrase means anything) in the UK as it is in the States, but "arse" is "offensive" (my citation is conversations with Brits, I could be wrong).

Do you ban everything? Do you use Potter Stewarts's method of assessment? Do you write up a black list? Do you let anything fly?

Turns out that last one works fairly well as long as people aren't stressed, enraged, drop a heavy object on their foot, etc. Oh, and if you have some asshole, they're a problem, but that's how it goes.

[MJL]

I thought George Carlin settled this matter long ago...

[I won't even say it]

a black list?

[Rich]

"patently offensive"

Shouldn't that be "copyrightly offensive"? 😉

[Tim]

"Even if the sex acts depicted in the targeted films were highly unusual,"

Even? Sullum you wildman...

[Number 2]

Ah yes..."family forum" and "family friendly." A place where we adults pretend that we don't talk about sex and use obscenities with our friends...and our children pretend that they don't talk about sex and use obscenities with their friends.

[Jen]

+1

[Kroneborge]

+2

[RockLibertyWarrior]

When I first came on the site I thought the title of this article was "Boner and Buttman". Tee hee hee I was wrong, however I think Bono is a big boner so I wasn't completely wrong about the title of the article.

[LarryA]

The commission said bullshit was unacceptable on a police drama because it was "vulgar, graphic and explicit," but dickhead was OK because it was "not sufficiently vulgar, explicit, or graphic" to be indecent.

Bullshit. These dickheads need a real job.

But as anti-porn activist Patrick Trueman conceded, the films cited in Stagliano's indictment, Milk Nymphos and Storm Squirters 2, are "in many respects typical of what's available today."

So if these were run-of-the-mill porn films, and porn films outsell most of what Hollywood produces, how is it they "offend community standards?"

[David]

Something I think has been largely missing from Reason's Stagliano coverage is the question of whether or not ANYTHING can/should be criminally obscene. There is a lot of discussion about how it's very difficult to decide exactly what constitutes as criminally obscene, but not enough discussion of the principle described in the last paragraph, that we should "object to the idea of imprisoning people for movies made by and for consenting adults"

[mad libertarian guy]

+1

[Kroneborge]

One standard I heard floated was

Any defecation or urination on the person
Any rape/torture S&M (IE a bit of bondage is ok, beating the person up, strangleation etc is not)

[tr0n]

"By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means," the court concluded, "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive."

What a crock of shit. It wasn't unconstitutional because the idea of the FCC picking certain words to be "indecent" is insane, it was unconstitutional because the FCC didn't clearly outline how and when people would not be allowed to speak freely.

[Martin]

Excellent point, and Stagliano's case was also thrown out on technical grounds. Not, as it should have been, because it's nobodies fucking business what type of porn I enjoy.

[Martin]

If the participants are all consenting adults, and the buyers/viewers of the material are consenting adults, then who the fuck are the FCC to tell people they can't watch it? (which, by the way, would entail our unelected overlords at the FCC watching it, and then telling everybody else they could not).

The very idea is so fucking ridiculous it defies belief.

I'm not a fan of TV sitcoms with constant double-entendres, mostly because they're not that funny, so I just don't watch them. But I don't want the writer sent to fucking prison!

[Robert]

How about regular prison?

[Carl Pham]

An interesting argument. So let me suggest a hypothetical for your consideration:

A young (18 years old) fellow Martin happens to fall onto hard times, loses his job and dog and woman, just like a country song, gets depressed and vaguely suicidal. He meets a wealthy and beautiful, but as it sadly turns out, antisocially sadistic woman, who initially praises and validates him, makes him feel far better about himself, and additionally supplies him liberally with coke, which, while he's under the influence, makes him feel the best he has in years.

She turns out to be sexually kinky, which at first rather turns him on. She likes it up the ass, and being tied up. Whee! Then she gradually starts to want to switch roles a bit. This time I'll tie you up! It'll be fun! Let's do a line first, you'll love it.

Well, one thing leads to another, what with Martin's underlying self-esteem issues and essential bewilderment by this woman's psychopathic ability to be genuine and affectionate (or seem so) one moment, but cold as Himmler vivisecting a zek the next. Soon she's pegging him with an outrageously huge black tool, while he wears frilly pink bras and a ball gag. He's a little -- well, maybe a lot -- zonked on weed and pills at the time, doesn't remember much about it.

She videotapes this. She may have told him before she started up the camera, or maybe not -- he can't remember. But she definitely showed the videos to him once or twice afterward, to spice things up, or (let's be honest) to kind of keep him humiliated and under her psychological thumb. Eventually there's a little library of films of Martin's ass being rented out, sometimes after he does some blow on camera, as well as some grainy footage of Martin committing minor vandalism -- breaking car windows, say -- as part of a pathetic storyline. Who knows? Even Martin isn't sure of everything he did in his addled mental state.

However, eventually ol' Martin reaches bottom, so to speak, and re-evaluates. From somewhere he retrieves a shred of self-respect, abandons Miss Rich Bitch, kicks the drug habit, moves into a seedy 1BR apt and gets a miserable job at the video store. But he works hard at the job, pays his bills, saves his money, learns programming at night on his own, and eventually in college classes. Gradually he starts to make it.

In fact, 20 years later he's a successful engineer at IBM being considered for a Vice Presidency, with a loving wife and two talented daughters, the oldest of whom is applying to be a Rhodes scholar from Yale.

And, as it turns out, his former mistress has fallen on hard times, as a consequence of which she is now selling over the Internet selections from those videotapes of Martin, tied to a frame, being pegged by a giant black dildo while he squeals. In some scenes he's committing minor crimes, spewing racist invective, whatever. You can see his face perfectly clearly. Because she (the mistress) harbors a grudge, she even puts his real name on the credits. And sends a link to his daughter, the IBM board, and some folks on the Rhodes committee, just for grins.

Now keep in mind the participants are, or rather were at the time, consenting adults, for certain definitions of "consenting" and "adults." The buyers and viewers are, too.

Is it your position that Martin's friends and neighbors and society in general should have no power to interfere in Miss RB's efforts to profit from Martin's earlier mistakes? You made your bed, you dumb-ass, now lie in it? The daughters -- well, you should have picked a better dad, or had him fill out an Obama Administration 44-page disclosure form before applying for fancy scholarships?

I don't pretend to tell you what your answer should be. But I do suggest the entire situation is somewhat more subtle than whether Miss Grundy can tell you you're allowed to watch penises penetrating pussies, but not asses -- including such subtleties as the exact nature of "informed consent," i.e. whether and in what sense the people "consented" to what's happening, and what it means, or doesn't mean, if they change their minds later. I don't know how true it is, but at least I've read that the ambiguous type of "consent" I've tried to describe above is not uncommon among new young girls in the pr0n biz. Would you really enjoy watching Buttman make some hot young girl gape -- if you knew it was actually hurting her, and she was in fact frightened and humiliated at the time, and afterward she ran to the bathroom and threw up, wishing she was dead?

It's also a sad relevancy that the existence of a market for something doesn't say a lot about how desirable it may be to have it in the public square. Some people will pay to watch almost anything, including painful mistreatment or even murder. I am sure if you had videotapes of Jews in the gas chamber at Auschwitz, you could make money selling them on the Internet. Would that be OK, too?

Again, I do not suggest the answers to these issues. Maybe -- probably -- we need to err on the side of liberty. But I don't think it's a very simple situation, and I don't think very simple answers are useful.

[otherhmm]

What about pornography that is purely virtual in nature... like erotic fiction where children are raped abused and killed or like Japanese "lolicon" comics where young girls are sexually objectified?

Will you err on the side of liberty here, or would you say these might somehow influence people to rape children?

I ask because obscenity has been used on purely textual works, and for mere possession of comic books imported from Japan which were deemed obscene. Who were the victims here besides the people prosecuted?

Also, as far as possession of pornography goes, how can you expect the consumers to be responsible for what may or may not have happened to the girl/boy in the pornographic film? I'm sure some feel very empowered by the porn industry, while others feel genuinely taken advantage of. Which just raises even more questions about you even questioning the libertarian position on this... because you are making the blanket assumption that this is always the case? If the person feels they have been taken advantage of, they can SUE! If they felt they were forced into signing a contract they can SUE or ask for criminal charges to be filed against these people.

Why should the STATE determine what we can or cannot consume due to its content? If this was about people being victimized they wouldn't even be using the obscenity standard since it has NOTHING TO DO WITH THAT.

[Carl Pham]

I don't expect consumers to be legally responsible for what may or may not have happened to the person in a pr0n film. That was not my point, eh? What I suggested is, first, that anyone with an actual conscience ought to feel morally responsible, to some varying degree, for that which he subsidizes with his purchase. I would not willingly buy a video of a woman being raped. Would you? If I found out later a video I'd bought showed a woman being raped, and I'd paid her rapist, I'd be mortified and upset. Wouldn't you? I notice you have evaded that question -- but I think it's an important one. The basis for the rights that libertarians hold dear is moral, not economic, so you can't wash your hands of the moral implications here.

I've also said that society has an interest in protecting the participants, and would-be participants, bearing in mind how slippery the concept of "informed consent" is.

It's not much different from believing that labor or consumer protection law isn't wholly unreasonable, or that the FDA should have some say in regulating the sale of medicines, or that the EPA might be able to charge polluters the cost of their externalities. In each case the argument goes that because these economic activities and transactions have influence beyond the pure self-perceived welfare of the consumer, or because of some strong asymmetry in power and information between consumer and seller, society at large has an interest and some right to regulate these transactions.

I realize all of these are debatable and debated from a libertarian point of view -- well, except for the proposition that the government should tightly regulate the RIAA and should allow those disappointed by their iPhones to sue Apple for a bazillion dollars -- but they are not to the more mainstream opinion. As I said, I don't necessarily disagree that pr0n should in the main be free from governmental influence, or that, as you suggest, the influence of government should be focussed on making it easy for people who have been abused by others to collect specific damages from them. But I think the answers are not so obvious and obviously right as the generic horn-dog male Reason reader might think.

Yes, in theory a person can sue if he feels abused. But in order for his suit to have any chance of success it must actually run afoul of personal injury law. Perhaps that is the right legal focus -- perhaps we should leave issues of content alone, but merely insist on very strong "worker's rights" protections for people who choose, willingly or semi-willingly, to work in this business.

For example, perhaps copyright law should be modified so that a pr0n actor has indefinite copyright to his appearance on film, although he may assign his financial interest. That way a person could put a stop to distribution of his youthful mistakes at any later time. Or perhaps we should have stronger consent laws, require witnessed or notarized consent statements, or perhaps there should be health 'n' safety laws galore. I don't know. I don't suggest I do know, not having studied the business. As I said, I only suggest the morally respectable outcome here is far less clear-cut than, say, whether the Obama Administration should be able to order all of you to buy health insurance, or put a stop to offshore oil drilling to boost their street cred among greenies, or whether Chris Dodd needs to be tarred and feathered.

[otherhmm]

"For example, perhaps copyright law should be modified so that a pr0n actor has indefinite copyright to his appearance on film, although he may assign his financial interest. That way a person could put a stop to distribution of his youthful mistakes at any later time."

I agree with this, but not with the rest so much. I've had this exact same idea. The problem with "strong worker's rights" is... well... just makes me think of stuff like Greece. You don't want people taking advantage of the pornographers either... 😉 And no thanks to health and safety standards, then they could ban 'x' kind of content by saying it is "too dangerous" or whatever...

Opt-in systems like copyrights I think can be something useful which the state may create... the problem is when the "fair use" and whatnot gets stomped on the laws are made totally unreasonable and skewed absurdly in favor of the copyright holder.

[otherhmm]

Oh.. and yes.. I would be upset if I purchased some porn of a girl REALLY being raped and found out I had financially supported this kind of activity.

I've seen some Japanese rape snuff videos where I know it was consensual, but it is meant to really appear as though the girl was tricked into signing a contract and then getting raped apparently quite viciously, and it made me ill even though I'm quite sure it was dramatized. But do I think it should be illegal? Definitely not.

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[Elf]

I don't think the First Amendment covers actual rape (off camera - when they break them in), drugging them, brutalizing and occasionally killing them, abducting, human trafficking, and organized crime - for instance when Roy DeMaio wanted to turn a ordinary business in the 70's into a porn shop and the owner didn't he killed them - and it's more than an occasional murder.

You Libers are entertaining, but not all human activity should be protected by the Constitution.

We can pretty much fit drugs under the above rubric.

If the Constitution offers anarchy people will chose order.

I say this having seen anarchy. It wasn't pretty.

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